Beyond the Fault/No-fault Divide Between Compensation Systems: The Need to Address the Emotional Dimensions of Suffering a Wrong

Activity: Lecture / PresentationAcademic


Fault-based injury compensation schemes are considered to be generally more anti-therapeutic than no-fault schemes. This paper starts from the submission that the fault or no-fault basis of schemes is not necessarily decisive for the level of adversariality of claims handling procedure, and that a more detailed knowledge is required of the mechanisms that lie behind the negative correlation of adversariality with recovery and health outcomes. It then recounts some findings in empirical studies on reconciliation and the elements and effects of apologies, to extrapolate these to the process of the resolution of injury claims. The emotional and moral impact of suffering harm as a result of a committed wrong as identified in these studies, is compared to the properties of the process of the out of court resolution of injury claims. After it is concluded that these properties generally do not address this impact but instead often increase it, several options are identified to tackle these anti-therapeutic effects. These options involve the promotion of personal contact between the person responsible for the harm-causing event and the victim, and several adaptions to the process of the resolution of injury claims, such as taking responsibility by taking and keeping the initiative, and promoting the experience of procedural justice.
Period16 Mar 2018
Event titleUnexpected Consequences of Compensation Law: Symposium at UNSW Law School
Event typeConference
LocationSydney, Australia, New South WalesShow on map
Degree of RecognitionInternational